Fall v. Holder , 560 F. App'x 771 ( 2014 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT March 27, 2014
Elisabeth A. Shumaker
Clerk of Court
BILLO FALL; MADIAMA MBAYE,
Petitioners,
v. No. 13-9560
(Petition for Review)
ERIC H. HOLDER, JR.,
United States Attorney General,
Respondent.
ORDER AND JUDGMENT*
Before KELLY, ANDERSON, and MATHESON, Circuit Judges.
Billo Fall and her husband, Madiama Mbaye, natives and citizens of Senegal,
petition for review of a final order of removal from the Board of Immigration
Appeals (BIA). Because petitioners’ challenge to the agency’s denial of their
untimely asylum application does not raise a constitutional claim or question of law,
we lack jurisdiction to review it and dismiss that portion of the petition. Ferry v.
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Gonzales, 457 F.3d 1117, 1130 (10th Cir. 2006); 8 U.S.C. § 1158(a)(3). We do,
however, have jurisdiction to consider the agency’s denial of restriction on removal,
8 U.S.C. § 1252(a), and deny the remainder of the petition.
Background
Ms. Fall and her husband were admitted to the United States on nonimmigrant
visas in 2001 and 2000, respectively, but overstayed. In 2007, the government
initiated removal proceedings. Petitioners conceded removability and filed
applications for asylum, restriction on removal, and relief under the Convention
Against Torture (CAT). Petitioners claimed eligibility on account of their political
opinion and membership in a particular social group.
In response to whether she or anyone closely associated with her had
experienced past harm, Ms. Fall indicated on her application that her aunt was a
victim of female genital mutilation (FGM). She also stated that she feared returning
to Senegal because she is afraid that she and her daughters will be subjected to the
procedure. Ms. Fall’s husband sought derivative asylum relief, but filed a separate
application for restriction on removal and CAT protection. In his application,
Mr. Mbaye stated that his wife was tortured in Senegal because she refused to
undergo FGM. He also stated that he fears returning to Senegal because he will be
beaten and tortured for not allowing his wife and daughters to be circumcised.
In a hearing before an Immigration Judge (IJ), Ms. Fall testified that she is
from a tribe that practices FGM. She said that in 1992 her aunts and uncles beat her,
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and that the beating intensified when she voiced her opposition to FGM. She
submitted photos of scars she claims are from that attack. She testified that she
suffered other beatings, but that the 1992 attack was the most severe. Ms. Fall’s
husband and sister also testified.
At the end of the hearing, the IJ denied petitioners’ asylum application as
untimely, found their testimony incredible, and denied their requests for restriction
on removal and CAT protection. In evaluating Ms. Fall’s testimony, the IJ focused
on her failure to mention the 1992 attack in her application. He found her excuse for
the omission—that she was ashamed—unpersuasive; specifically, he could not square
Ms. Fall’s ability to mention her fear of FGM, but inability to mention a prior
FGM-related beating. The IJ noted that Ms. Fall did not produce any evidence
corroborating the cause of her scars and that her testimony about the severity of the
1992 beating conflicted with her sister’s. Consequently, the IJ concluded that the
record failed to establish that Ms. Fall suffered past persecution. In rejecting
Ms. Fall’s fear of future persecution, the IJ observed, among other things, that FGM
is criminalized in Senegal, it is on the decline, and it is not widespread in urban areas
such as Dakar, where Ms. Fall has roots. Citing Matter of A-K-, 24 I. & N. Dec. 275,
278-79 (BIA 2007), the IJ also rejected petitioners’ claim to restriction on removal
based on their fear that if they return to Senegal, their daughters may be subjected to
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FGM. Admin. R. at 52.1 The BIA upheld the IJ’s determination that petitioners
were statutorily ineligible for asylum because their asylum application was untimely
filed, upheld the IJ’s denial of restriction on removal, found petitioners’ CAT claim
waived, and dismissed petitioners’ appeal.
In this court, petitioners challenge the BIA’s asylum and restriction on
removal rulings. As previously noted, however, we lack jurisdiction to review the
agency’s denial of asylum. Further, petitioners have apparently abandoned any claim
that Mr. Mbaye is entitled to restriction on removal. Their opening brief takes issue
with the BIA’s denial of Ms. Fall’s request for restriction on removal only,
challenging the BIA’s determinations that she failed to (1) testify credibly,
(2) establish past persecution, or (3) demonstrate a clear probability of future
persecution.
Discussion
In this case, it is the BIA’s brief, single-member decision that we review.
Rivera-Barrientos v. Holder, 666 F.3d 641, 645 (10th Cir. 2012). We “will not
affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in
its affirmance.” Id. (internal quotation marks omitted). “However, when seeking to
1
We note that petitioners have waived any challenge to that ruling by failing to
exhaust it before the BIA or raise it in their opening brief in this court. See Sidabutar
v. Gonzales, 503 F.3d 1116, 1118 (10th Cir. 2007) (“[W]e generally assert
jurisdiction only over those arguments that a petitioner properly presents to the
BIA.”); Krastev v. INS, 292 F.3d 1268, 1280 (10th Cir. 2002) (“Issues not raised on
appeal are deemed to be waived.”).
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understand the grounds provided by the BIA, we are not precluded from consulting
the IJ’s more complete explanation of those same grounds.” Uanreroro v. Gonzales,
443 F.3d 1197, 1204 (10th Cir. 2006).
“We review the BIA’s legal conclusions de novo,” Rivera-Barrientos,
666 F.3d at 645, and its factual findings, including credibility determinations, for
substantial evidence, Uanreroro, 443 F.3d at 1204, 1205. “In this circuit, the
ultimate determination whether an alien has demonstrated persecution is a question of
fact” also subject to the substantial-evidence standard. Zhi Wei Pang v. Holder,
665 F.3d 1226, 1231 (10th Cir. 2012) (internal quotation marks omitted). Under that
standard, “[t]he BIA’s findings of fact are conclusive unless the record demonstrates
that any reasonable adjudicator would be compelled to conclude to the contrary.”
Rivera-Barrientos, 666 F.3d at 645 (internal quotation marks omitted).
Our review of a corroboration finding is circumscribed by 8 U.S.C.
§ 1252(b)(4), which states that an adjudicator’s determination shall not be reversed
by a court “unless the court finds . . . that a reasonable trier of fact is compelled to
conclude that such corroborating evidence is unavailable.” See also 8 U.S.C.
§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the applicant should
provide evidence that corroborates otherwise credible testimony, such evidence must
be provided unless the applicant does not have the evidence and cannot reasonably
obtain the evidence.”); id. § 1231(b)(3)(C) (applying § 1158(b)(1)(B)(ii)’s standards
to restriction on removal).
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“To obtain restriction on removal, the alien must demonstrate that her ‘life or
freedom would be threatened in [the proposed country of removal] because of [her]
race, religion, nationality, membership in a particular social group, or political
opinion.’” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (quoting
8 U.S.C. § 1231(b)(3)(A)).
An alien may create a rebuttable presumption of eligibility for
restriction on removal by either (1) demonstrating past persecution in
the proposed country of removal on account of one of the protected
grounds; or (2) showing that it is more likely than not that the alien
would be subject to persecution on one of the specified grounds upon
returning to the proposed country of removal.
Sidabutar, 503 F.3d at 1123-24 (citations and internal quotation marks omitted).
“Persecution is the infliction of suffering or harm upon those who differ . . . in a way
regarded as offensive and requires more than just restrictions or threats to life and
liberty.” Zhi Wei Pang, 665 F.3d at 1231 (internal quotation marks omitted).
Credibility and Past Persecution
Petitioners contend that the BIA erred in upholding the IJ’s adverse credibility
finding and in concluding that Ms. Fall failed to demonstrate past persecution. We
disagree.
The agency gave “specific, cogent reasons for disbelieving” Ms. Fall’s
testimony. Uanreroro, 443 F.3d at 1204 (internal quotation marks omitted). The
BIA highlighted the evidence the IJ cited in support of his adverse-credibility
finding; namely, that Ms. Fall testified she was beaten for resisting FGM but omitted
any mention the beatings in her application. The BIA agreed with the IJ that
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Ms. Fall’s explanation for not mentioning the beatings was unpersuasive. The BIA
noted that although Ms. Fall submitted photos of scars, she did not provide any
medical testimony or other corroborative material linking the scars to the 1992
beating. And the BIA stated that Ms. Fall’s testimony about the severity of the 1992
beating was inconsistent with her sister’s statement that Ms. Fall’s injuries resulted in
only “‘a little bit’ of bleeding.” Admin. R. at 5.
Omissions, implausible explanations, and inconsistent testimony are proper
credibility factors. See Ismaiel v. Mukasey, 516 F.3d 1198, 1205-06 (10th Cir. 2008)
(observing that agency may discredit an applicant’s testimony about significant
incidents where applicant did not disclose that information at earlier stages in the
proceedings); Elzour v. Ashcroft, 378 F.3d 1143, 1152 (10th Cir. 2004) (explaining
that an “adverse credibility determination may” stem from “inconsistencies in the
witness’ testimony, lack of sufficient detail, or implausibility”). Having reviewed the
record in accordance with the prescribed deferential standard of review, we cannot
conclude that the agency’s credibility finding was substantially unreasonable or that
any reasonable adjudicator would be compelled to conclude that Ms. Fall must be
considered a credible witness. Nor would any reasonable adjudicator be compelled
to conclude that corroborating evidence was unavailable. Indeed, petitioners make
no argument concerning the unavailability of corroborating evidence under 8 U.S.C.
§ 1252(b)(4). To prevail on their arguments to the contrary, petitioners would
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require us to reweigh the evidence, which we do not do. See Yuk v. Ashcroft,
355 F.3d 1222, 1236 (10th Cir. 2004).2
Moreover, we reject petitioners’ argument that the BIA erred in denying
Ms. Fall’s claim of past persecution. Our review confirms that substantial evidence
supports the agency’s determination on this point and that no reasonable adjudicator
would be compelled to conclude otherwise.
Future Persecution
Petitioners next assert that the BIA erred in upholding the IJ’s determination
that Ms. Fall failed to establish that it is more likely than not that she will be
persecuted upon her return to Senegal. This argument is also unavailing.
In upholding the IJ’s determination, the BIA, among other things, noted that
Ms. Fall’s husband and family are opposed to FGM, none of Ms. Fall’s sisters has
been circumcised, and Ms. Fall’s “11 year old daughter, who has been living with a
relative in Senegal since she was born, has not been subjected to the procedure”
either. Admin. R. at 5 (citing Ritonga v. Holder, 633 F.3d 971, 977 (10th Cir. 2011)
(noting that continued presence of family in native country without any harm
2
We lack jurisdiction to consider petitioners’ unexhausted (and dubious)
contentions that (1) there was no reason for Ms. Fall’s beatings to be included in her
application, (2) it might not be obvious to an applicant that she must provide all
information on her application, which contains limited space, (3) corroborating
evidence would have repeated Ms. Fall’s allegations, and (4) Ms. Fall’s sister’s
testimony obviated the need for further corroboration. See Sidabutar, 503 F.3d
at 1118 (stating that court of appeals generally does not assert jurisdiction over
unexhausted claims).
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“undercuts . . . asserted fear of persecution”)). Additionally, the BIA observed that
the 2010 State Department Country Report states that “only 28% of girls in Senegal
have undergone FGM,” that the prison sentence for FGM is “6 months to 5 years,”
and that “the government prosecute[s] violators of the law.” Id. at 5-6. Thus, the
BIA concluded that “respondents have not demonstrated that they could not seek
protection from the government.” Id. at 6 (citing Rivera-Barrientos, 666 F.3d at 646
(observing that harm must be “committed by the government or forces the
government is either unable or unwilling to control” (internal quotation marks
omitted)).
Our review confirms that substantial evidence supports the agency’s
determination that Ms. Fall failed to demonstrate a clear probability of future
persecution and that no reasonable adjudicator would be compelled to conclude
otherwise. Again, petitioners’ contrary arguments would require us to reweigh the
evidence, which we do not do. See Yuk, 355 F.3d at 1236.
Conclusion
For the foregoing reasons, the petition for review is dismissed in part and
denied in part.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
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